Tuesday, July 5, 2016

Comics Startup 101 - Protecting Your Intellectual Property

Comics Startup 101: Legal and Business Tips for the Independent Comics Creator
Part 6: Protecting Your Intellectual Property

           This post is part of a series that grew out of my Comics Startup 101 panel I presented with comics creators at various comic book conventions around the Midwest. You can find the first post discussing doing a clearance search here, the second post discussing choosing a business entity here, the third post discussing contracts (part I) here, the fourth post discussing contracts (part II) here, and the fifth post discussing an overview of intellectual property here. Today, we will discuss ways to protect your intellectual property.
           As always, I must disclaim that this is not meant to be an in-depth guide, nor is it meant to be complete legal advice. Any information provided in these posts is general in nature and should not be relied upon as legal advice. Meaningful legal advice cannot be given without a full understanding of all relevant facts relating to an individual’s situation. As such, you should consult with an attorney for specific legal advice that you might need.

Protecting Your Intellectual Property
1)      Copyright
            As I mentioned in the Intellectual Property Overview post, a copyright is any “original works of authorship fixed in any tangible medium of expression.”[1] The comic that you are creating, when finished and offered for sale, is a copyrighted work, and the entire work is protected under U.S. copyright law.
            An important decision will need to be made about if and when you want to apply for copyright registration with the U.S. Copyright Office. You may register a copyright at any time. However, you must register it within three months of its first publication in order to be granted full copyright protection, including statutory damages. If you register a work after this time-frame, you are only entitled to actual damages. The cost to register a copyright can vary from as little as $35 to as much as $85 or more, depending on the work you are seeking to register and depending on the method you choose to register, i.e., electronic versus paper registration. If you can afford to register your work with the Copyright Office, it is best to do so as soon as the work is published. 
2)      Trademark
            When starting your new business and comic, you may be creating trademarks. If you have adopted a business name, it might be a trademark. For example, Marvel,[2] DC,[3] Image,[4] and Top Cow,[5] all are registered trademarks.
            In addition to your business, the title of the comics you are publishing may be entitled to trademark protection. Some recent examples of trademarked titles from Robert Kirkman’s stable of comics include The Walking Dead,[6] Thief of Thieves,[7] and Super Dinosaur.[8]
            If your comic becomes successful enough that you start to produce merchandise bearing your creations, then you may be able to register additional trademarks associated with those goods. For examples, see the discussion of the Superman trademark registrations in the Intellectual Property Overview post. 
            As stated above, you may register a trademark with the USPTO at any time. Before you start publishing your comic, you may also file an intent-to-use application to reserve your rights to your prospective trademarks. You may also file at any time after you have begun to use the trademark in commerce. Keep in mind, however, that federal trademark registrations can be costly. The filing fee per class of goods or services is $325 or higher, and there are additional fees for the renewals of your trademark.[9] This is in addition to any attorney fees you may encounter, and if there are issues registering your trademark, the cost could escalate even higher.
3)      Domains
            Generally speaking, domain names are not considered intellectual property, but I believe they play an important role in today’s intellectual property protection and enforcement strategies. In my post on doing a clearance search, I mentioned that you should check domain registries as part of your clearance search. This will help identify possible existing conflicts. At the same time, if you are committed to using the names you have selected for your comic and your business, this is a great time to lock up those domains. You do not want someone else coming along later and registering a domain using the name of your comic or business. While it is possible to challenge a later registration, it can be costly, time-consuming, and it is not always possible to recapture a domain. If you can afford it, it is best to spend the money early and secure the domain name rights to the names you are planning to use for your comic and your business.

[1] 17 U.S.C. §102(a).
[2] Trad. Reg. No. 0870506, Registered June 3, 1969.
[3] Trad. Reg. No. 1003409, Registered January 28, 1975.
[4] Trad. Reg. No. 1884871, Registered March 21, 1995.
[5] Trad. Reg. No. 2120058, Registered December 9, 1997.
[6] Trad. Reg. No. 4443715, Registered December 3, 2103.
[7] Trad. Reg. No. 4430107, Registered November 5, 2013.
[8] Trad. Reg. No. 4149779, Registered May 29, 2012.
[9]See Trademark Processing Fees, USPTO, http://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule#TM%20Process%20Fee (last visited April 21, 2016).

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